Day on Torts

August 5, 2014

Deficient Certificates of Good Faith in Tennessee

If a health care liability defendant moves to dismiss based on the failure to file a sufficient certificate of good faith, can the plaintiff nonsuit before the trial court rules on the motion? Davis v. Ibach, W2013-02514-COA-R3-CV (Tenn. Ct. App. July 9, 2014) is the latest opinion that says the answer is yes. Based on the various cases in which the question has been raised, it looks like the answer is “yes” in just about any circumstances:

– Where the plaintiff files a certificate of good faith but it is allegedly deficient. (Davis)

– Where the plaintiff fails to file a certificate of good faith at all. (Robles v. Vanderbilt University Medical Center, M2010-01771-COA-R3-CV, 2011 WL 1532069 (Tenn. Ct. App. Apr. 19, 2011))

July 28, 2014

Lawsuit Against Agent for Inadequate Insurance Limits

by The Law Offices of John Day, P.C.

The case of Barrick v. State Farm Mut. Auto. Ins. Co. and Jones, No. M2013-01773-COA-R3-CV (Tenn. Ct. App. June 27, 2014) first begins in 2008, when the Barrick family was sued after their minor son accidentally killed a motorcyclist in a tragic crash while driving his father’s car. For over 20 years, the Barricks had been insured with State Farm through their insurance agent Thomas Jones. Unfortunately, however, at the time of the crash their policy limits for auto liability coverage was only $100,000 per person. The family of the deceased motorcyclist ultimately settled their lawsuit against the Barricks for a total sum of $200,000, with State Farm paying $100,000 and the Barricks paying the remaining $100,000 in excess of their policy limits.

Thereafter, the Barricks sued State Farm and their insurance agent, Mr. Jones, and asserted claims of negligence, negligent training and supervision (of Mr. Jones by State Farm), assumption of duty (because Mr. Jones had taken additional duties beyond those of an insurance agent by recommending and also selecting the Barricks’ insurance coverage limits), and violation of the Tennessee Consumer Protection Act (“TCPA”). The trial court eventually dismissed all of the Barricks’ claims by granting State Farm’s and Mr. Jones’ motions for summary judgment, and the Barricks appealed.

On appeal, the Barrick court affirmed dismissal of the negligence claim, based on consideration of two undisputed facts: (1) that the Barricks had procured State Farm insurance through Mr. Jones for over 20 to 25 years, and (2) that the Barricks received copies of their insurance policies, declarations pages, and renewal notices during this time period. Relying on Tennessee precedent from Weiss v. State Farm Fire & Casualty Company, 107 S.W.3d 503, 506 (Tenn. Ct. App. 2001) – which holds that an agent’s duty ends when the agent obtains insurance for plaintiffs and properly provides copies, notices, and declarations – the Barrick court held that State Farm and Mr. Jones did not owe a duty to the Barricks and therefore could not be liable for negligence.

July 25, 2014

Truck Driver Left Vehicle and Loses Protection Under UM Coverage

by The Law Offices of John Day, P.C.

An over-the-road truck driver parked his truck on the shoulder of a road, got out, walked across a five-lane highway to a convenience store, purchased a soft drink and chewing tobacco, walked back across the highway towards his truck, but in the lane second-nearest the truck was struck by a vehicle which fled the scene. The truck driver was injured and sough coverage under his employer’s uninsured motorist policy. The UM carrier denied coverage and moved for summary judgment arguing that the truck driver was not entitled to coverage because he was not “occupying” a covered auto at the time of the accident. The policy defined “occupying” as “in, upon, getting in, on, out or off” a covered auto. The trial court granted summary judgment and the truck driver appealed. The case is Beech v. John Doe, No. M2013-02496-COA-R2-CV (June 11, 2014).

The issue on appeal was whether the truck driver was “upon” the truck at the time of the accident for purposes of uninsured motorist coverage. The court of appeals found he was not and upheld the trial court’s grant of summary judgment. The court of appeals looked at a number of other cases interpreting “upon.” Most notably, the court looked to Tata v. Nichols, 848 S.W.2d 649 (Tenn. 1993) in which the Tennessee Supreme Court found that the term “upon” when used to define “occupying” for purposes of UM coverage is ambiguous. The Supreme Court adopted four criteria for determining whether a person is “upon” a vehicle so as to “occupy” it:

(1) there is a causal relation or connection between the injury and use of the insured vehicle;

July 23, 2014

Tennessee Insurance Coverage Decision

by The Law Offices of John Day, P.C.

In Cleveland Custom Stone v. Acuity Mutual Insurance Company, No. E2013-02132-COA-R3-CV (June 10, 2014), the Tennessee Court of Appeals considered a myriad of issues in a case concerning an insurance company’s failure to pay insurance proceeds to the Plaintiffs for a building destroyed by fire.

The business that owned the building sought to add insurance coverage for the building to the business’s existing insurance policy with Acuity when it purchased the building in 2007. The business used USIG, an agent of Acuity, to procure the coverage. USIG provided a certificate of insurance form at the closing of the sale of the building to the business.

Following the fire, Acuity denied payment and notified the business that it never had successfully added coverage for the building. Acuity also alleged that the business owners intentionally set the fire.

July 21, 2014

Fraudulent Concealment Exception to Medical Malpractice Statute of Limitations and Statute of Repose in Tennessee

by The Law Offices of John Day, P.C.

In Robinson v. Baptist Memorial Hospital, No. W2013-01198-COA-R3-CV (July 11, 2014), the court addressed the fraudulent concealment exception to the statute of limitations and statute of repose for medical negligence actions in Tennessee. In this case, the defendant doctor erased the initial version of his consult note and changed his initial, incorrect, diagnosis of the decedent. During discovery, the plaintiff learned of this change and was granted leave to amend the complaint to add the defendant doctor and his medical practice as defendants. This amended complaint was filed around five years after the initial lawsuit was filed – outside of the one-year statute of limitations and three-year statute of repose for medical negligence claims in Tennessee.

Under Tennessee law, the doctrine of fraudulent concealment will toll the running of a statute of limitations. It tolls the statute when a defendant has taken steps to prevent the plaintiff from discovering that he was injured. There are four elements that must be met to prove fraudulent concealment:

(1) that the defendant affirmatively concealed the plaintiff’s injury or the identity of the wrongdoer or failed to disclose material facts regarding the injury or the wrongdoer despite a duty to do so;

July 10, 2014

Train Wreck. Divorce Trial. But I Repeat Myself

by The Law Offices of John Day, P.C.

This is a decision about a divorce trial but we are reviewing it on Day on Torts because we always write about cases involving train wrecks.

Seriously, we will cover this case because it contains some useful reminders about (1) a party’s obligation when briefing issues on appeal; (2) the appropriateness of a court’s use of findings of fact and conclusions of law submitted by a party; and (3) discovery sanctions. The opinion is 31 pages long and a large portion of those pages are related to the tortured procedural history in the trial court. Rather than recount the history, below is just enough to give you a flavor of what the trial court was confronted with:

1. The parties had been married 32 years and had 3 grown children.

July 9, 2014

Defendant’s Lie Under Oath May Be A Sin, But It Is Not Admissible in MVA Trial

by The Law Offices of John Day, P.C.

This appeal arises from a December 24, 2010 motor vehicle accident involving a vehicle driven by Johnny Miller and another vehicle driven by Mr. Moretz. The cause of the accident was hotly contested with both parties claiming the other to be at fault. As for damages, Mr. Miller and his wife, who was a passenger in the vehicle, claimed they sustained soft tissue injuries. The jury returned a verdict finding Mr. Moretz to be 10% at fault and Mr. Miller 90% at fault. As to Mrs. Miller, the jury found zero damages. On appeal, the Millers took issue with a ruling regarding Mr. Moretz’s prescription drug use on the day of the accident and the trial court’s failure to grant an additur or a new trial on damages as to Mrs. Miller.

Mr. Moretz’s Prescription Drug Use on the Day of the Accident.

During discovery, the Millers served interrogatories on Mr. Moretz. One interrogatory asked whether Mr. Moretz had consumed any alcohol or drugs in the twelve hours prior to the accident. Mr. Moretz denied doing so. Under oath in his deposition and for a second time, Mr. Moretz denied drug use on the day of the accident. Prior to trial, Mr. Moretz moved in limine to prohibit the plaintiffs from introducing any evidence he had taken oxycodone on the day of the accident. Mr. Moretz’s offered that his personal physician had told him he could drive while taking the medication and he provided a letter for his employer to that effect. In support of the motion in limine, Mr. Moretz argued that mere use was insufficient and impairment had to be demonstrated for the prescription drug use to be relevant.

July 8, 2014

Health Care Liability Expert Need Not Know Community Statistics from Date of Alleged Injury to Testify in Tennessee Medical Malpractice Case

by The Law Offices of John Day, P.C.

As far as I can remember, Evans v. Williams, No. W2013-02051-COA-R3-CV (Tenn. Ct. App. June 30, 2014),is the first and only case dealing with whether a health care liability expert must be familiar with demographic information about the defendant’s community from the time the alleged malpractice occurred. To be sure, the injury in this case occurred in 1991, twenty-two years before it was finally tried in 2013. Even with that much time, though, the Court of Appeals held that present day statistics are sufficient to establish an expert’s familiarity with a defendant’s community or a similar community.

At the trial of Evans, the trial judge granted Defendants’ motion to exclude one of Plaintiffs’ standard of care experts. The trial judge ruled that the expert was not familiar with the standard of care in Defendants’ county or a similar community when the treatment was rendered in the early 1990s. The trial judge denied Plaintiffs’ motion to exclude one of Defendants’ standard of care experts. The jury returned a verdict of no liability.

The Court of Appeals looked to Shipley v. Williams, 350 S.W.3d 527 (Tenn. 2011), for competency requirements under Tenn. Code Ann. sec. 29-26-115.

July 4, 2014

Tennessee Law of Civil Trial Book

by The Law Offices of John Day, P.C.

Tennessee Law of Civil Trial has been printed and is now available for purchase.

The 500+ page book is largely a discussion of the law of trying civil cases in Tennessee – the law of scheduling orders, pretrial conferences, jury selection, opening statement and closing arguments, use of depositions at trial, and more.

The book does touch on some aspects of the law of evidence, but candidly the book largely leaves that topic to other texts. Instead, this book is designed to be a reference guide that judges and lawyers can turn to for a ready reference on the substantive law of trial.

July 2, 2014

Case Dismissed Because Plaintiff Sent Notice by FedEx Instead of U.S. Postal Service

by The Law Offices of John Day, P.C.

In Arden v. Kozawa, M.D, No. E2013-01598-COA-R3-CV (Tenn. Ct. App. June 18, 2014), Plaintiff in a health care liability action appealed after his lawsuit brought on behalf of his deceased wife was dismissed at trial for failing to strictly comply with Tennessee’s pre-suit notice requirements.

Plaintiff’s wife was allegedly negligently treated by a doctor at a hospital for abdominal pain and she later died from pancreatitis and other complications. Prior to the statute of limitations, plaintiff sent pre-suit notice letters to the doctor and hospital, as required by TCA statute 29-26-121. However, there were four problems with the pre-suit notice letters: (1) plaintiff omitted his own address from the notice letters; (2) the doctor’s letter was sent to an address that was different from the listing on the Tennessee Department of Health website; (3) the provider’s list accompanying the letters did not include the hospital’s address; and (4) there was no certificate of mailing from the U.S. Postal Service because the letters were sent via Federal Express. The trial court dismissed plaintiff’s case at summary judgment based on plaintiff’s failure to strictly adhere to the requirements of the pre-suit notice statute, and plaintiff appealed.

The Tennessee Court of Appeals first observed that the trial court had wrongly applied the “strict compliance” standard to the pre-suite notice requirements, instead of the correct “substantial compliance” standard as previously held by Tennessee’s Supreme Court in Thurmond v. Mid-Cumberland Infectious Disease Consultants, PLC, No. M2012-02270-SC-R11-CV, 2014 WL 1632183 at *6-7 (Tenn. Apr. 24, 2014). Reviewing the content of plaintiff’s pre-suit notice letters in light of the correct “substantial compliance” standard, the appellate court ruled that defendant doctor and hospital were not prejudiced by plaintiff’s failure to include his own address and the hospital’s address on the providers list and, therefore, the content in plaintiff’s notice letters had substantially complied with the pre-suit notice requirements of 29-26-121.